Lack of Advice on Actual Immigration Consequences of Plea by Unrepresented Defendant – Potential Grounds To Vacate the Conviction

Lack of Advice on Actual Immigration Consequences of Plea by Unrepresented Defendant – Potential Grounds To Vacate the Conviction

The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no defense counsel in the case who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea.


Where the court takes a waiver of the right to (appointed) counsel, it is obligated to advise the defendant concerning the dangers and disadvantages of self-representation.  After Padilla, one of those dangers is that the court is not obligated to give the defendant accurate immigration advice, whereas counsel, appointed or not, is obligated to do so under Padilla.  Post-conviction counsel could argue that the court is therefore now required to warn a defendant who waives counsel of the disadvantage of waiving counsel caused by losing the right to accurate advice concerning the immigration consequences of the plea. Cf. Iowa v. Tovar,541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).


In California state courts even prior to Padilla, and in the Ninth Circuit after Padilla, the courts have held that a defendant’s ignorance concerning the actual immigration consequences of a plea can constitute “good cause” to withdraw the plea.  See People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596; United States v. Bonilla, 637 F.3d 980, 986 (9th Cir. 2011)

(holding that defense counsel's inadequate legal advice regarding the immigration consequences of a guilty plea constituted a "fair and just" reason for withdrawing the plea under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure).


The traditional rule is that the court has no constitutional obligation to give any advice to the defendant concerning the adverse immigration consequences (even the possible ones) at the time of plea, only the direct penal consequences.  Some appellants have raised claims on appeal that after Padilla, these consequences have now become “direct” consequences, but the courts have so far uniformly rejected this claim.  Padilla itself does not say whether deportation consequences are direct or collateral, since it was irrelevant to the ineffective assistance of counsel claim before the court.  It is nonetheless possible to raise this claim still, arguing that Padilla’s holding that deportation is a “penalty” changed this rule.  The correct view, however, is that even after Padilla, immigration consequences are not direct penal consequences because they are not imposed by the criminal court.  Padilla does not change this.  It simply says that even if deportation consequences are collateral, defense counsel still has the duty to advise the defendant accurately concerning them. 


In my opinion, it is a lost cause to try to label immigration consequences “direct” and therefore impose the duty on the court to advise the defendant correctly concerning them, as Padilla requires of defense counsel. 


This is because the court has no duty to investigate the defendant’s immigration status, and has no duty to do the legal research necessary

to identify the exact immigration consequences that will befall the defendant if he or she takes this plea.  It is unreasonable to impose these duties of counsel on the court, and the court in some jurisdictions, like California, is forbidden to inquire as to the defendant’s immigration consequences.  See California Penal Code § 1016.5(d)(last sentence).  The most that can reasonably be expected of the court is to make sure counsel performs the duty dictated by Padilla, and to make sure the defendant knows that by waiving counsel, s/he is waiving the right to have this information concerning the actual (as opposed to merely potential) immigration consequences of the plea.